51 Miss. 575 | Miss. | 1875
delivered the opinion of the court.
The plaintiff in error, sheriff of the county of Colfax, was indicted for“unlawfully and negligently” suffering and permitting a prisoner to escape from his custody. The indictment set out in detail a complaint on oath against the said prisoner, charging him with larceny; the warrant and arrest by the sheriff ; the examination before the magistrate; his commitment; the mittimus, or warrant, and the confinement in jail. There was a motion to quash the indictment. 1. Because the indictment does not furnish that full, clear and perfect statement of the cause of accusation to which the defendant is entitled under the constitution; and 2. Because upon its face the indictment shows that there was no sufficient cause to justify the finding of said bill.” This motion was overruled. There was also a general .¡demurrer to the indictment, which was also overruled.
During the reading of the indictment, and when it appeared that the accused was sheriff of the county, the court ordered the coroner of the county to be sworn to act as sheriff during the trial, and until the return of the sheriff to duty by operation of law. Whereupon, the coroner was sworn as sheriff, and at once assumed the .duties of the office.
The plaintiff in error standing mute after the reading of the indictment, a plea of not guilty was entered for him. Thereupon, the court directed the coroner to summon a special jury, which was done.
The verdict of the jury was as follows: “¥e, the jury, find the defendant guilty as charged in the bill of indictment, and respectfully recommend the clemency of the court to the defendant.”
' There was a motion for a new trial, stating fourteen reasons therefor. This motion was overruled. In this court, nine grounds of error are assigned. The points made in support of a new trial, and relied on for error, may be condensed in these, as presenting the material questions in the case : The suspension or removal
of the sheriff pending the trial, and the installation of the coroner in the sheriff’s office; the summoning of a special jury to try the sheriff; the rejection of evidence offered by the accused, show, ing the manner of the escape through defects in the construction of the jail; and the law of the case as declared by the court, to wit: That the sheriff was without excuse, unless the escape was caused by the act of God, or other irresistible adverse force.
As to the suspension of the sheriff and the recognition of the
As to the special jury, Code, § 635.
As to removal from office on conviction, Const., art. YI, sec. 26; Code, § 321.
So far, the court proceeded within the express provisions of statute, and pursuing the authority thus conferred, the case, up to this point, presents no serious difficulty. The rule of law, declared by the court, however, demands and has received the most serious consideration. As to this, it is believed, that the key to its solution is found in Layer’s case, supra, wherein the court say, “As for requiring the irons to be removed from the prisoner in the tower, the court would make no order, because, if they did, it might be an excuse to his keeper, if he (the prisoner) should escape; therefore, it must be left to his keeper’s discretion how to use his prisoner, especially since he had already attempted to escape.” The adoption of the rule in this state, that an escape may be excused by proof of a defective jail, would result in a general jail delivery in every county therein. It is scarcely possible to conceive of consequences more disastrous to society, than would follow such an adjudication or legislation. The statute, Code, § 881, requires sheriffs to “ safely keep all prisoners lawfully committed, according to the mittimus or order of committal.” In case the jail, in the opinion of the sheriff, is insufficient for the safety of prisoners, he may summon guards to secure them or protect the jail, as long as the same may be necessary. Code, § 2850. And if the jail needs repairs, it is his duty to report it to the proper authorities, or, in an emergency, to have the repairs done on his own order. Code, § 240. From the earliest times it has 'been the rule in England, that for escapes, whether from arrests on civil or criminal process, the sheriff would be heard to excuse himself only on the plea, that the escape was by the act of God or the public enemy. And in this country, the same doctrine is universally applied in case of an escape from arrest on civil process. Few, if any, cases
In support of these rules numerous authorities are cited, but they are all of escapes from arrest in civil process. The reason and the reasoning seem to be the same in both cases. No
Smith v. Hart, 2 Bay, 395, was an action of debt for an escape. The sheriff offered evidence of the insecurity of the jail; that he had made remonstrances to the governor on the subject; and that it had frequently been presented by the grand jury; but the evidence was excluded. On appeal, it was held to have been prop
In State v. Halford, 6 Rich., 58, it is said: “The rule may, in some cases, operate hardly on the sheriff; but they are rare. Most frequently an escape is favored by the negligence of the jailer. The walls and fastenings of the jail, however strong and solid they may be, are not of themselves sufficient to prevent escape. The vigilance of the jailer is indispensable to the safe keeping of the prisoners. The liability of the sheriff and of a common .carrier respecting the subjects committed to their charge, rests on a common ground of public policy. The sheriff is not a mere bailee. He exercises a public employment, and is charged with a duty in the safe keeping of prisoners, of vital importance to government. The law is deprived of its efficacy, and the judgment of the court is frustrated, when a prisoner escapes. The good order of society and the security of private rights depend on the execution of the law. Pretexts and excuses for an escape are so easily invented and so easily maintained by evidence, that unless they are cut off, the sheriff may, in almost every case, secure to himself impunity. It is sufficient to exempt the rule from any imputation of harshness, that public necessity demands it.”
Although the rule referred to is stringent, it is believed a just public sentiment can be relied on to exempt faithful and vigilant officers from malicious prosecutions and injustice. In the case at bar, the witnesses give the plaintiff in error a good character as an officer, and ascribe the escapes, which had been numerous and repeated, to an unfortunate selection of jailers. No vigilance on the part of the jailer was proposed to be shown. The case made by the party on trial for himself was a reliance on the jail for the security of his prisoners, and of a defective jail to exempt him from responsibility for their escape. Doubtless the jailer was asleep, altogether absent from the jail, or consenting'to the escape. See further, Tidd’s Pr., 308; Saxon v. Boyce, 1 Bailey, 66;
If, in this case, the penalty is severe, the fault is in the constitution, art. YI, sec. 26, which is peremptory. In other states, a discretion is confided to the courts to fine or remove from office, according to the character or repetition of the offense. And this is doubtless more in accordance with justice. In this state, however, there is no discretion and no alternative. Const., art. YI, sec. 26; Code, § 821,
Judgment affirmed.